Justifying Ethics

Human Rights and Human Nature

Jan Gorecki

• Publisher: Taylor & Francis
• Year: 2017
• eBook ISBN: 9781351510332
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

"Human rights include individual rights against government oppression, such as the right to freedom of thought, religion, speech, assembly, and to a fair system of criminal justice. But even in this basic political sense, ""human rights"" means different things in different historical and cultural contexts and advocacy of such rights has frequently been viewed as subjective. Justifying Ethics offers a thorough critique of the most common attempts to formulate objective standards through appeals to human nature, religion, and reason. Gorecki opens his inquiry by considering the role of norm-making concepts in the history of ethical thought: how standards of rights were claimed to conform to human nature and reason or have been stipulated by an external authoritative source such as God or social contracts. He then shows how such justifications may be discounted on analytical or practical grounds using such examples as divine will, Kantian reason, and the truth value of moral judgments. With respect to empirically grounded appeals to human nature, Gorecki argues against the notion that the innate plasticity of human behavior and potential for social diversity is sufficient grounds for human rights activity without objective justification. The search for justification remains essential in enhancing the persuasiveness of ethical action that aims at the moral ""contagion"" of the people by the human rights experience and the transition from moral acceptance to legal implementation.Broad in intellectual scope, Justifying Ethics draws upon moral and political philosophy, social policy, psychology, history, jurisprudence, and international law to clarify the prerequisites for the success of human rights activity. The book will be of special interest to political theorists, philosophers, sociologists, and human rights activists."

1

The Problem of Justification

Would human rights advocates be at ease with the preceding analysis? The idea of human rights, like that of any other moral rights and duties, may seem to have been reduced here to individual experiences and their expressions—to the feelings of rights and to norms expressing those feelings. Thus understood, human rights norms, like all other moral norms, become subjective, personal pronouncements. This is exactly how moral skeptics perceive ethics. “There are no objective values,” they assert.¹ Any moral judgment, especially a moral norm, is a product of its utterer’s moral experience, and thus it does not express anything but the utterer’s subjective state of mind. Because of their proximity to our minds or hearts—the skeptics maintain—the ultimate moral norms become the first principles that we consider so obviously binding that we accept them without any further evidence or explanation. We make them, we choose them, and their acceptance is “a responsibility that falls upon ourselves.”² Thus, they become moral axioms from which lower-level norms can be deduced.

This subjectivist stand differs from how most of their advocates understand human rights norms. And, more inclusively, it differs from how most of their utterers understand any moral norms. For instance, a parent’s or a preacher’s utterance “you shouldn’t steal,” if conceived as a moral norm,³ expresses much more than the utterer’s personal feeling (however strong the personal feeling may be). The utterance means that you should not kill in the most objective manner, independently of the parent’s or the preacher’s personal opinion. And the words of the Declaration of Independence did not mean that all men have inalienable rights to “life, liberty and the pursuit of happiness” because I, Mr. Thomas Jefferson, or we, the members of the Continental Congress, feel so; what Jefferson and the other signatories of the Declaration said meant that every man has these rights objectively, independently of anyone’s personal views. That is, they claimed that the validity of human rights norms is not just subjectively experienced, but objectively justified. And so is, in the view of any utterers, the validity of other moral norms.

But may this claim be accepted? Does not our feeling of the objective, “binding” force of moral norms constitute an illusion, a false claim “ingrained in our language and thought”?⁴ In other words, can our moral utterances be objectively justified at all? This question—the problem of justification—has proved intractable enough to be sometimes quietly passed over. Still, it is often perceived as a crucial question for normative ethics, especially for the human rights idea.

It is clear why the question is significant. By dealing with the general view of the world and the human condition it has, for many of us, fundamental importance. Furthermore, it is intellectually perplexing: is the assertion of the objective validity of moral judgments true, or is it only a widespread illusion (to be feasibly registered among many other “pathetic fallacies” or Baconian idola fori)? The answer to this question has also practical implications. Utterers of any moral norms want themselves to be sure they have strong reasons for the acceptance of the norms they cherish. And, most importantly, they want those norms to be accepted by the society they live in, or even by all societies. Convincing reasons help this acceptance. But the utterer’s subjective feelings can hardly be perceived as a convincing reason; only objective grounds are truly instrumental for persuasion.⁵ Thus, objective justification constitutes a major determinant of the wide acceptance of the norms they utter. That is why the search for objective justification of ethics has lasted for over two thousand years, and is often perceived as the “most important… problem of philosophical ethics.”⁶

To answer the question of justification, one must first determine the meaning of “objective justification.” To be sure, grievances have been made about the vagueness of the expression: “Hardly any … moral philosophers … give any clear idea of how they are using the terms ‘objective’ and ‘subjective.’”⁷ However, from the viewpoint of most of those who have tried to justify the norms they utter, a meaning of sufficient clarity does emerge. As I noted in the preface, when claiming objective justification of a moral norm, they go beyond their own feelings. They refer to the occurrence of an outside, nonpsychological (and, in this sense, objective) fact “producing” the norm that, when believed to have occurred, compels us to accept the norm. I will call it a “normmaking fact.” The full list of normmaking facts ever suggested, by anyone anywhere, would be long and largely queer. Thus, I will deal here only with those kinds of normmaking facts that have played a major role in the history of ethical thought.⁸

The first, and by far most influential of them, is human nature: some moral norms are claimed to either conform with demands of, or be ingrained in, human nature; thus, our own nature compels us to accept them. This kind of justification has been with us since the Socratics. The function of ethics constitutes here one important subdivision: owing to peculiarities of human nature, morality is with (or in) us to perform a specific function, and this compels us to accept the norms that serve the function well. A very different, frequently claimed kind of normmaking fact is that the norm has been stipulated by a heterono-mous, authoritative “source,” such as God or social contract. This is how many theists of various creeds, some natural law advocates, and some social contractarians understand justification of the norms they utter. Another kind is that the norm is a necessary dictate of reason; in the Kantian view, particularly influential within this tradition, reason means here pure, a priori reason of any existing or imaginable rational being. And still another kind is that the norm is, simply, true. More precisely, things as they are (or the world as it is) become here the normmaking fact, and the norm only reports them, as any true statement of fact does. Once norms such as “you should not kill” or “all humans have inalienable rights” are established as true, their veracity compels us to accept the norms. In other words, acceptance of the norms is here as objectively justified as that of any true statement of fact. This is how cognitivists—ontological idealists and modern intuitionists—understand the justification.

One reservation must be added here: there is one kind of reasoning obviously excluded from the above list of feasible justifications. This is a moral norm’s reduction to a more general norm within the same system of primary norms.⁹ The reduced norm’s entailment may be simple: “you should not lie on tax returns” is simply entailed by the more general norm “you should not lie.” Most often, however, the entailment is due to a conjunction of the more general norm with a factual statement about the consequences of behavior prescribed or proscribed by the norm to be justified. For instance, the norm “you should not lie on tax returns” may be reduced to a more general norm, “do not endanger the society’s survival,” with the addition of a factual premise that cheating on taxes endangers survival of the society. Or, such norms as, “you should not maim others” or “you should not degrade others” or “you should feed the hungry” may be reduced to the more general norms, “do not inflict suffering” or “do maximize happiness,” with the addition of a factual premise that maiming or degrading or nonfeeding of the hungry brings about increase of suffering or decrease of happiness. This is how consequentialists, especially utilitarians, justify specific moral norms they utter. Reduction of this kind, sometimes called “internal justification,” constitutes an entirely legitimate procedure. However, for obvious reasons, it is excluded from the above list of the feasible objective justifications: it consists in moving, within the same primary system, from less to more general norms, until we reach the most general (or “ultimate” or “basic”) norm or norms of the system, with the problem of their justification, again, unresolved.

The compelling force of any normmaking fact always comes from the acceptance of a relevant rule of recognition. Any normative system, moral or legal, can be limited to primary norms which stipulate the contents of the prescribed or proscribed behavior. Or, it can be understood more broadly, to also include a rule of recognition of primary norms, that is, a rule which orders the general acceptance of the whole category of primary norms.¹⁰ For instance, pronouncement such as “we accept true statements” or “we should obey norms ingrained in human nature” or “we should obey orders of God,” are the rules of recognition of any true norms, or norms ingrained in our nature or issued by God. (As these instances indicate, the rules of recognition are a linguistic mixture. The pronouncement “we accept true statements” is a statement of fact. The provision “we should obey orders of God” is a norm. And the assertion “we must obey norms ingrained in human nature” can be understood as either a norm meaning that we ought to obey, or an implicit teleological proposition meaning that we cannot help but to obey, since otherwise we would bring about impossible consequences.)

Of course, the compelling force of various rules of recognition is uneven. Accordingly, the compelling force of various normmaking facts is also uneven. Thus, some suggested justifications are stronger than others. In particular, some normmaking facts, if believed to have occurred, make the acceptance of the norm a self-evident must; the way our mind works makes the rejection of the norm hardly conceivable. One rule of recognition is exceptionally strong; the way our mind works makes its rejection virtually impossible. This is the rule “we accept true statements”; its acceptance sounds like a self-evident must. Consequently, rejection of a moral norm believed true is hardly conceivable.¹¹ (This is probably why some moral thinkers, when speaking of objective justification, have in mind only the question of the truth value of moral judgments.) On the other hand, most, if not all, other rules of recognition have only persuasive power, and the degree of their persuasiveness varies. This is, for instance, the case with such rules as “we should obey orders of God” or “we should obey social contract.” Accordingly, the conviction that a moral norm was imposed by God or social contract can only, more or less forcefully, persuade those convinced to accept the norm. To justify a moral norm in the sense accepted here, the force of the normmaking fact must be genuine: for those who are convinced that the normmaking fact did occur, it must be difficult (if at all possible) to reject the norm.

Thus, the logic of the justifying reasoning should be clear by now; this is a syllogism, with the rule of recognition as the large premise, the statement of normmaking fact as the small one, and the norm to be justified as conclusion. Sometimes, whenever both premises and the conclusion are statements of fact, the syllogism is classical; this is the case when the veracity of a norm is claimed as the normmaking fact. More often, the syllogism is practical, moving from a normative large premise to a normative conclusion. Clearly, this reasoning is not tainted by naturalistic fallacy—it never moves from an “is” in both premises to an “ought” in the conclusion.

One further comment must be added here. The compelling force of any rule of recognition is not entirely independent of the contents of the moral norms it is claimed to justify. The dependence may be of two kinds. First, a rule of recognition can lose its force if the moral norms it is claimed to justify run strongly against the society’s moral intuitions. For instance, had social contractarians claimed that the original social contract stipulated slavery, the rule of recognition, “we should follow the social contract,” would not be persuasive in a liberal society. And, second, a rule of recognition can lose its force if the moral norms it is claimed to justify are clearly irrelevant for the society’s intuitions. For instance (to paraphrase a well-known example by Philippa Foot¹²) had social contractarians claimed that the original social contract stipulates everone’s duty to clasp hands three times an hour, the contractarian rule of recognition would lose its persuasiveness as well.¹³ Thus, there is a degree of “circularity” (that is, two-way adjustment) in the justifying reasoning. This kind of circularity is not unusual in the reasoning of analysts of normative systems—it resembles the “reflective equilibrium” idea of some moral thinkers,¹⁴ and the “hermeneutical circle” in legal reasoning.¹⁵

These comments may pave the way toward the resolution of the problem of justification. As they imply, the validity of at least some claimed justifications can be assessed in a publicly convincing manner. Of course, we can rebut any attempted justification on analytical grounds if its logic is defective. We can also rebut any attempted justification by demonstrating that, even for those who accept the occurrence of the claimed normmaking fact, it is easy to reject the norms “produced” by it, or, in other words, that the rule of recognition is not persuasive. And, if the occurrence of a claimed normmaking fact happens to be empirically testable, we may be able to test the justification and to feasibly refute it by disproving that the normmaking fact has occurred (e.g., by disproving that there ever was a social contract.¹⁶) These steps can be applied to the various kinds of normmaking facts just listed and bring either rebuttal or corroboration of the proposed justifications. The corroboration of at least one would provide us with objective justification of ethics and, especially, of human rights norms, whereas the rebuttal of all would support the stand of moral skeptics. This kind of scrutiny will be conducted now, starting with human nature as justification, and then moving beyond human nature.

Notes

1. This is the well known sentence opening the first chapter of J.L. Mackie’s book (1977: 15).

2. Ayer 1984: 34. Cf. also Popper 1971, vol.1: pp. 62–66.

3. Of course, this utterance may be conceived as a nonmoral prescription. In particular, in some contexts it may express an aesthetic rather than a moral aversion against stealing; in others, it constitutes a teleological demand, e.g., when “you shouldn’t steal” implies “to avoid punishment” or “to be respected.”

4. Mackie 1977: 35, 48–49.

5. For a qualification of this view see 135, note 1, infra.

6. Gewirth 1978: ix.

7. Hare 1981: 206.

8. For a few instances of normmaking facts c...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Introduction: The Power of Human Rights
• 1. The Problem of Justification
• 2. Human Nature
• 3. Beyond Human Nature
• 4. Criticism: Human Nature as the Source of Hope
• 5. Countercriticism: The Human Rights Struggle and the Need for Justification
• 6. Conclusion: The Importance of Justification
• Bibliography
• Index